I. THE SIXTH CIRCUIT LIFTS THE FIFTH CIRCUIT STAY

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals lifted the national stay of the OSHA ETS issued by the Fifth Circuit (https://ohaganmeyer.wpengine.com/2021/12/02/president-bidens-vaccine-mandates-put-on-hold/), finding that the potential harm COVID-19 poses to the Government and the public interest “outweighs any irreparable injury to the individual petitioners who may be subject to the vaccination policy.”  The Sixth Circuit also engaged in an extensive statutory analysis to conclude that the ETS is well within OSHA’s authority Congress granted to it in the Occupational Safety and Health Act of 1970.  This ruling means that, unless and until the United States Supreme Court say otherwise, employers with 100 or more employees will be required to comply with the ETS.

A. What happens now?

1. • Challengers to the ETS, including business groups, religious organizations, and 27 states, filed emergency appeals with the U.S. Supreme Court asking it to immediately halt implementation of the mandate.
   • The emergency appeals were distributed to Justice Kavanaugh as the Justice assigned to the Sixth Circuit.
   • Justice Kavanaugh set December 30, 2021 as the Government’s deadline to file a response to the challenger’s request.  Justice Kavanaugh can address the motions himself or distribute to the full Court.

B. Did OSHA adjust the compliance deadlines as a result of the litigation?

• • Yes. January 4, 2022 was the original deadline for employers to comply with the ETS.  However, following the Sixth Circuit’s ruling, OSHA posted on its website that it would not issue citations until January 10, 2022.
  • OHSA also announced that it would not take action to penalize employers for non-compliance with the ETS testing requirement until February 9, 2022, provided the employer is taking reasonable, good faith efforts to comply.

C. What steps should impacted employers take now?

1. • Because OSHA plans to begin issuing citations a mere six business days following the Government’s December 30, 2021 response deadline, we recommend employers continue to prepare for possible implementation of the ETS.
   • As the January 10, 2022 date nears, if the U.S. Supreme Court has not acted, covered employers will have to decide whether to begin to collect the vaccination date required for the employee log.  That decision will likely be a company by company decision with which attorneys at O’Hagan Meyer can assist.
   • For now, we recommend that covered employers do not activate any public/employee facing documents until the Courts have determined the ultimate fate of the ETS.

OSHA ETS FAQs[1]

II. DEFINITIONS IN THE ETS

A. Which employers are covered?

1. • Private employers with 100 or more employees (firm or corporate-wide).

B. Which employees count toward the 100 employee threshold?

• • Employees working at different locations of the employer
  • Part-time employees
  • Employees working from home
  • Seasonal employees employed at any point while the ETS is in effect
  • Employees working offsite, such as customer’s homes
  • Employees who work exclusively outdoors (although not all requirements of the ETS will apply to outdoor workers).

C. Which workers do NOT count toward the 100 employee threshold?

• • Employees of a separate franchisee.  For example, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.
  • Independent contractors
  • Employees of a staffing agency working at your location

D. To which employees does the ETS NOT apply?

1. • Employees not reporting to a workplace where coworkers are present
   • Employees working from home
   • Employees working exclusively outdoors
   • Healthcare workers covered by the ETS
   • Federal Contractors covered by Executive Order 14042 also covered by the ETS

III. GENERAL OVERVIEW OF THE ETS

A. What is required of Employers?

• • Develop, implement and enforce a COVID-19 vaccine policy.  Employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine and record employee vaccination status. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Test employees who are not vaccinated. The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Ensure the use of face coverings. The ETS requires employers to ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Educate employees about the Company’s new policies regarding the ETS. Employers must provide employees with the following: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know About COVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Set up a reporting and removal process for employees who test positive for COVID-19. This reporting and removal process must: (1) require employees to promptly provide notice when they receive a positive COVID19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider; (3) keep removed employees out of the workplace until they meet criteria for returning to work.
  • Report COVID-19 fatalities and hospitalizations to OSHA. Employers must report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Maintain records of employee vaccination status. The ETS requires employers to make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee. Employers are also required to make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace.

IV. EMPLOYER POLICY ON VACCINATION

A. What should an employer COVID-19 policy include?

1. • Model policies for employers are posted at https://www.osha.gov/coronavirus/ets2
   • An employer COVID-19 policy should detail whether the employer is implementing a mandatory vaccine requirement or a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace, all relevant information regarding the policy’s effective date, to whom the policy applies, deadlines employees must abide by, and procedures for compliance and enforcement.
   • Mandatory vaccine policies should, at a minimum, also detail what process will be used to determine employee vaccination status, what applicable exemptions apply (i.e. disability and religious exemptions), what paid leave employees are entitled to for vaccinations and side effects, how employees should notify employers of positive COVID-19 tests and removal of COVID-19 positive employees from the workplace, and what disciplinary action will be used for employees who do not abide by the policy.
   • Policies allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear face coverings should, at a minimum, in addition to the vaccine policy requirements in the bullet points above, detail the mask requirement, when employees need to be tested, and how and when test results will be collected and stored, how the testing will be paid for.

B. Do you recommend implementing a mandatory vaccine policy or a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear face coverings?

• • OSHA’s preference is a mandatory vaccination policy.  That being said, the answer will largely depend on your employee base.[2]
  • In addition to allowing for a mandatory vaccination policy or a policy permitting employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear face coverings, the ETS also permits a partial mandatory vaccination policy that requires mandatory vaccination for some employees, but allows other employees the choice of vaccination or testing.
  • Employee preference for a testing or hybrid option should be weighed against the additional possible costs, complexity, and compliance and reporting requirements involved in allowing for a testing option or a hybrid option.

C. Are employers required to submit their vaccination plan/policies to OSHA?

• • No, unless requested.  If requested, the employer must provide its written policy to the Assistant Secretary within 4 business hours of the request.

V. VACCINATION STATUS

A. How do employers determine employee vaccination status?

• The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated. This is an ongoing requirement for the employer (i.e., the employer needs to update this information as employees proceed through the vaccination process).
• Employees who do not respond to an employer’s request for vaccination status are considered unvaccinated.
• Employers must also maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintain a roster of each employee’s vaccination status.

B. What is acceptable proof of vaccination?

• The following are acceptable for proof of vaccination: (i) the record of immunization from a health care provider or pharmacy; (ii) a copy of the U.S. CDC COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020) (CDC, October 5, 2021); (iii) a copy of medical records documenting the vaccination; (iv) a copy of immunization records from a public health, state, or tribal immunization information system; or (v) a copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
• An employee who does not possess their COVID-19 vaccination record (e.g., because it was lost or stolen) should contact their vaccination provider (e.g., local pharmacy, physician’s office) to obtain a new copy or utilize their state health department’s immunization information system.
• If an employee has no other way to prove they are vaccinated, they can provide a signed attestation that they have been vaccinated. The ETS provides specific language that must be used. While employers may not invite or facilitate fraud, the ETS does not require employers to monitor for or detect fraud.

C. Do employers have to provide paid time off?

• Employers must provide employees with up to 4 hours paid time off for each primary vaccination series doses, which time cannot be deducted from the employee’s current PTO, sick time, or vacation days. The 4 hours includes travel time.
• Employers must also provide a reasonable amount of paid sick leave to recover from any side effects experienced following each primary vaccination series dose. This leave can be deducted from accrued PTO or sick leave.  The employer can also cap the amount of leave at a reasonable period. This leave is in addition to the up to 4 hours of leave to obtain each vaccine dose.

VI. MANDATORY VACCINATION

A. Are there possible exemptions to mandatory vaccination?

• Yes. Employees who fall into one of three categories may be exempt from mandatory vaccination: 1) those for whom a vaccine is medically contraindicated, 2) those for whom medical necessity requires a delay in vaccination, or 3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

B. Is allowing employees to participate in weekly testing with a mask requirement a reasonable accommodation?

• Yes.

C. May employers with a mandatory vaccine only policy discipline, up to and including terminate, employees who refuse vaccination?

• Yes.

VII. REQUIREMENTS FOR UNVACCINATED EMPLOYEES

A. What are the testing requirements for unvaccinated employees?

• Employers must ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).

B. Do unvaccinated employees who work remotely need to be COVID-19 tested weekly?

• No.

C. If an unvaccinated employee comes into work once a month, is that employee required to be tested weekly?

• No. However, the employer must ensure the employee is tested for COVID-19 within seven days prior to returning to the workplace and provides documentation of that test result to the employer upon return to the workplace.

D. Must employees who have been partially vaccinated be tested weekly?

• Yes. Employers must ensure that each employee who is not “fully vaccinated” complies with the weekly testing requirement.  In the case of a two-dose primary vaccination series (e.g., Pfizer-BioNTech and Moderna), an employee is not considered “fully vaccinated” until 2 weeks after receiving the second dose of the series. Therefore, employers would need to ensure employees continue to test weekly until 2 weeks after receiving their second dose.

E. If an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief that prevents them from being vaccinated, does the employee still need to be tested weekly?

• However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.

F. Are employers required to pay for costs associated with COVID-19 testing?

• No, with some exceptions — employer payment for testing may be required by state law, regulations, or collective bargaining agreements or other collectively negotiated agreements.
  • For example, employers should determine whether the cost of testing, if paid for by the employee, will bring the employee’s weekly pay below minimum wage. If so, both the Fair Labor Standards Act and some state laws would be triggered and employee payment for testing would be prohibited.
  • Also, employers may be required under the Fair Labor Standards Act, to pay for the time it takes an employee to be tested. For example, if the employee testing is conducted in the middle of a work shift.
  • Many states have statutes requiring employer payment of job-related medical testing for applicants and/or employees. It is unclear how these statutes will apply to the ETS.

• Employers are permitted to assume the cost of COVID-19 testing.

VIII. RECORDKEEPING REQUIREMENTS

A. Is maintenance of records in accordance with the ETS subject to applicable legal requirements for confidentiality of medical information?

• Yes.

B. If an employer has asked employees about their vaccination status prior to the effective date of the ETS AND retained records of employee response, what is required of the employer?

• Employers are not required to re-evaluate vaccination status for fully vaccinated employees
• Employers are permitted to use any record of response, even if it is not listed as acceptable proof under the ETS
• Employers are required to create a roster of each employee’s vaccination status
• Employers are required to maintain proof of vaccination and roster as employee medical records while the ETS is in effect.

C. Do employers have to maintain a copy of each COVID-19 test result for each unvaccinated employee?

• Yes. The employer must maintain a record of each test result required to be provided by each employee pursuant to the ETS or obtained during tests conducted by the employer.

D. Do employers need to keep records when they receive notice that an employee has tested positive for COVID-19?

• No. The ETS does not contain specific requirements for the employer to establish or maintain records of employee notifications of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider.

IX. OTHER CONSIDERATIONS

A. How will OSHA enforce the ETS and what are the penalties for noncompliance?

• OSHA will enforce the rule through inspections as it does with other workplace-related policies. These inspections can be triggered by employee complaint or through planned inspections.
• The penalty for a serious violation is up to $13,653 per violation and the fine for a willful violation is up to $136,532 per violation.

B. How will the ETS impact State laws that prohibit or limit the employer’s authority to mandate vaccination?

• The ETS preempts States, and political subdivisions of States, from adopting and enforcing workplace requirements relating to the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19, except under the authority of a Federally approved State Plan.
• Litigation will resolve whether the ETS preempts state laws, such as enacted in Florida and Texas, banning vaccine mandates, including asking employees to prove vaccination status

C. How will the ETS impact OSHA State Plans?

• OSHA State Plans must be “at least as effective” as the ETS.
• OSHA will work with States with State Plans that do not meet the “at least as effective” standard set by OSHA to bring such State Plans up to standard.
• States are permitted to maintain State OSHA Plans with requirements that are more rigorous than the ETS.
• What will happen to State Plans that do not adopt the OSHA ETS is unclear at this point. For example, OSHA has threatened to remove OSHA oversight from Arizona for failing to adopt the ETS.

D. Are there any union related considerations?

• Any mandated vaccination program would likely be a mandatory subject of bargaining with the union (depending on the discretion in the management rights clause).
• Remember that Section 7 protects all employees’ (not just unionized employees) right to protest allegedly unsafe workplaces.
• Employers in unionized workplaces with 100 or more employees must, like all covered employers, follow the minimum requirements established by the ETS. Nothing in the ETS, however, prevents employers from agreeing with employees and their representatives to implement additional measures, and the ETS does not displace collectively bargained agreements that exceed the requirements of the ETS. As examples of additional measures that could be implemented via collective bargaining, employers might agree to cover the costs of face coverings or medical removal, or to adopt a requirement that all employees, regardless of vaccination status, wear face coverings while working indoors.

For additional guidance on OSHA’s emergency temporary standard, please contact a member of O’Hagan Meyer’s Labor and Employment Team, at (804) 403-7100.

[1] These FAQs are an updated version of FAQs previously published in an O’Hagan Meyer alert on November 9, 2021 (https://ohaganmeyer.wpengine.com/2021/11/09/navigating-the-new-osha-vaccine-mandate-while-the-fifth-circuit-pumps-the-brakes-whats-next/ )

[2] As an example, an employer in New York City may decide to implement a vaccine requirement to comply with that city’s vaccine mandate.

Authored by: Woody Lay, Amanda Muehlhausen, Rachael Loughlin, and Lilias Gordon